Excerpt:practice - redemption suit--mortgage not proved--adverse possession--high court, power of, to remit issue, to find if plaintiff in possession himself or through others. - - the original finding of the appellate court was that the plaintiffs bad proved title to the whole of the property in dispute, but had not proved the mortgage set up by them or that the defendants whom they call their mortgagees had ever been in possession as such mortgagees. we think the view taken by the learned chief justice was right and that the plaintiffs have failed to prove their possession within limitation as against the defendant, syed asad ali......allowed to come to trial. however, the actual point for decision is a narrow one. the respondent, syed asad ali, is in possession of only a portion of the property originally in dispute with which we are now concerned. he has throughout put the plaintiffs to proof of their entire case. the plaintiffs said that the property in possession of syed asad ali formed part of a larger property which had originally belonged to them and had been mortgaged with possession to another set of defendants. their case was that syed asad ali had entered into possession as a trespasser by ousting the persons whom the plaintiffs call their mortgagees. on the pleadings the plaintiffs were bound to prove that they had a subsisting title against the defendant, asad ali. the original finding of the appellate.....

Judgment:

1. This is an appeal in a suit winch has been repeatedly before this Court and has given rise to considerable differences of opinion. As was pointed out by Mr. Justice Tudball in the first instance, the trouble began with the framing of the plaint, and it is really doubtful whether a plaint such as this, seeking possession by redemption of an alleged mortgage against one set of defendants, and possession by ejectment of another set of defendants as mere trespassers, should have been allowed to come to trial. However, the actual point for decision is a narrow one. The respondent, Syed Asad Ali, is in possession of only a portion of the property originally in dispute with which we are now concerned. He has throughout put the plaintiffs to proof of their entire case. The plaintiffs said that the property in possession of Syed Asad Ali formed part of a larger property which had originally belonged to them and had been mortgaged with possession to another set of defendants. Their case was that Syed Asad Ali had entered into possession as a trespasser by ousting the persons whom the plaintiffs call their mortgagees. On the pleadings the plaintiffs were bound to prove that they had a subsisting title against the defendant, Asad Ali. The original finding of the Appellate Court was that the plaintiffs bad proved title to the whole of the property in dispute, but had not proved the mortgage set up by them or that the defendants whom they call their mortgagees had ever been in possession as such mortgagees. When the case was brought in second appeal before a single Judge of this Court an issue was remitted, asking for a, definite finding as to whether the plaintiffs themselves, or any person holding through or on behalf of the plaintiffs, had been in possession of this particular part of the property in dispute within twelve years prior to the institution of the suit. The remanded issue came before a Judge other than the Judge who originally disposed of the appeal. On a persual of the two judgments it would seem that the learned Judges were inclined to differ as to the facts of the case. The second Judge, however, felt himself unable to dissent from the finding of his predecessor against the existence or validity of the alleged mortgage. Accordingly he returned a finding couched in guarded language, to the effect that the persons whom the plaintiffs call their mortgagees had been in possession within limitation. The contention for the plaintiffs as appellants now before us is that this is a finding in their favour. Their case all along was that their possession within limitation had been through certain persons who were their mortgagees. There was no suggestion that these persons were in possession otherwise than as mortgagees of the plaintiff's. Practically, therefore, the finding that the possession of these so-called mortgagees was in reality the possession of the plaintiffs could only be arrived at by reversing the finding that these persons were not in possession as mortgagees of the plaintiffs. We think the view taken by the learned Chief Justice was right and that the plaintiffs have failed to prove their possession within limitation as against the defendant, Syed Asad Ali. One point in the case has, however, been overlooked in this Court. Syed Asad Ali is in possession of one half share only in the parao referred to in the judgment and decree of the lower Appellate Court. It was probably by an oversight that the learned District Judge, in the order by which he disposed of the appeal in his Court, directed that the decree of the first Court should be drawn up so as to make it clear that the parao was not included in the land covered by that decree. He should have said that one half share of the parao in possession of Syed Asad Ali was not so included. We must now order accordingly. Otherwise we dismiss this appeal. We make no order as to costs.